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Over the past two years, the AMCU collegium has formed a stable practice, according to which, if the tender proposal of a participant does not contain documents/information contained in open registers and is publicly available (for example, an extract from the USR) and the provision of which is required by the terms of the tender documentation. from the point of view of the Board, such a violation of the requirements of the TD is not a basis for rejecting the tender offer of the participant.

This practice was formed thanks to the norm outlined in Part 4 of Art. 22 of the Public Procurement Law (hereinafter referred to as the Law). According to it, the tender documentation should not contain requirements that restrict competition and lead to discrimination of participants, as well as requirements for documentary confirmation of information on compliance with the requirements of the tender documentation, if such information is public and made public in the form of open data by the Law of Ukraine "On Access to Public Information" and/or is contained in open unified state registries, access to which is free.

At the same time, due to the large-scale armed aggression of the Russian Federation against Ukraine, for the period of martial law, access to most public electronic registries is limited.

So, SmartTender lawyers try to figure out whether the collegium's practice has changed due to the restriction of access to open state registries and open data. To do this, let's compare similar situations in pre-war and wartime.

Information About the Status of the Taxpayer

According to the Decree of the Cabinet of Ministers of October 21, 2015 No. 835 “On approval of the Regulations on data sets to be published in the form of open data”, the State Tax Service of Ukraine publishes, in particular, the Register of value-added tax payers, the Register of single taxpayers.

At the same time, according to information from the official website of the State Tax Service of Ukraine, for the period of martial law, access to public electronic registers is limited:

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In the following situations, the conditions of the tender documentation provided that the participant as part of the tender proposal provides:

- OR a copy of the VAT registration certificate or a copy of an extract from the register of VAT payers;
- OR a copy of the certificate of the single taxpayer or a copy of an extract from the register of single taxpayers.

According to the following decisions, in both cases, the customer rejected the complainants' proposals because their proposal did not contain a copy of the VAT registration certificate or a copy of the extract from the VAT register.

At the same time, the practice of considering this issue by the AMCU collegium in the pre-war period and under martial law is as follows:

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Thus, it can be seen that the practice of not providing extracts from the register of VAT payers has changed by 180 degrees.

If earlier such a discrepancy was not considered critical by the board, then today, when the registries do not work, failure to provide the specified document is the basis for rejection from the point of view of the board.

It can be assumed that while the work of registries is limited, a similar consideration principle will be applied in situations where the tender proposal does not include, for example, an extract from the USR, information from the USREOU, etc.

Information on the Ultimate Beneficial Owners

According to paragraph 9 of the second part of Article 9 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Formations", the Unified State Register contains information about a legal entity (except for state bodies and local governments as legal entities). In particular, information about the ultimate beneficial owner of the legal entity, including the ultimate beneficial owner of its founder, if the founder is a legal entity.

At the same time, on April 13, 2022, the Order of the Ministry of Justice of Ukraine No. 1462/5 was approved to stop the disclosure of information in the form of open data, which is administered by the Ministry of Justice of Ukraine (hereinafter – Order No. 1462/5). He determined that to protect information under martial law, it is necessary to stop, for the duration of martial law, the disclosure of information in the form of open data, which is managed by the Ministry of Justice of Ukraine. This applies to the information defined by section II of the List of information to be made public in the form of open data, which is administered by the Ministry of Justice of Ukraine, approved by order of the Ministry of Justice of Ukraine dated March 28, 2016 No. 897/5 (hereinafter referred to as the List). By the List, the Ministry of Justice of Ukraine is the manager of such registers, information, data, and messages to be made public in the form of open data, in particular:

- Unified State Register of Legal Entities, Individual Entrepreneurs and Public Formations;
- Unified register of enterprises in respect of which bankruptcy proceedings have been initiated.

It should be noted that in the following situations, the conditions of the tender documentation provided for an identical requirement: “information from the participant on his compliance with the qualification requirements, the requirements specified in Article 17 of the Law of Ukraine “On Public Procurement”, including information on the ultimate beneficial owners (controllers) of the legal entity, in including the ultimate beneficial owners (controllers) of its founder, if the founder is a legal entity (except for public associations, bar associations, chambers of commerce and industry, associations of co-owners of apartment buildings, religious organizations, state bodies, local governments, their associations, state and municipal enterprises, institutions, organizations, as well as the conformity of the product, work or service with the technical, qualitative and quantitative characteristics of the subject of procurement specified in the announcement of the selection, is loaded by him into the electronic procurement system independently.

According to these decisions, in both cases, the complainants indicate that the tender proposal of the winners does not contain information about the ultimate beneficial owners (controllers) of the legal entity, including the ultimate beneficial owners (controllers) of its founder if the founder is a legal entity.

At the same time, the practice of considering this issue by the AMCU board before the war and as of today is as follows:

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Thus, similarly to decisions on the status of a taxpayer, if earlier the absence of information contained in open registers in the tender proposal was not considered a violation by the board, today there is a different trend, and the AMCU board, given the limited access to such registers, argues that failure to provide such documents or information is a non-compliance and the participant should be rejected.

Conclusion

It is noteworthy that the review practice has changed dramatically, as access to registers is limited, since the customer and/or the AMCU and/or other interested parties cannot verify this information on their own.

Earlier, in mid-May, Olga Pischanska, Chairman of the Antimonopoly Committee of Ukraine, on air for the KSE Procurement Improvement Center noted that customers, despite the fact that state registries are closed, continue to establish the requirement to provide such extracts in their tender documents. Therefore, in the case when the participant was unable to provide an extract and was rejected, the AMCU, when considering complaints, complies with the provisions of the Law on the fulfillment by the participant of the documentation requirements. That is, if such a requirement is in the tender documentation and it has not been met, the appeal body decides that the rejection of the participant is lawful.

To date, we are beginning to observe the confirmation of the words cited by the Chairman of the Antimonopoly Committee of Ukraine: the practice in decisions regarding information and documents from open registers is changing.

In view of the above, we recommend that participants comply with the conditions of the tender documentation, which were previously considered public information, and provide the necessary documents, including extracts, certificates, information from registers, etc., and customers not to establish requirements in tender documents for the provision of extracts and information, which must be obtained from registries that during the period of martial law do not work or are limited.

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